Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1246 of 2019
(Arising out of SLP (Crl.) No.1383 of 2018)
Tarun Jit Tejpal .. Appellant
Versus
The State of Goa & Anr. .. Respondents
WITH
MA No.2207 of 2018 in SLP (Crl.) No.31493150 of 2014
J U D G M E N T
M. R. Shah, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order dated 20.12.2017 passed by High Court of Bombay at Goa
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.08.20
18:10:30 IST
Reason:
in Criminal Revision Application No. 60 of 2017 by which the High
1
Court has dismissed the said Revision Application preferred by the
appellant herein – original accused and has refused to discharge the
appellantoriginal accused for offences under Sections 354, 354A,
354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC, appellant–
original accused has preferred the present appeal.
3. That the appellant herein – original accused is facing the trial for
the offences under Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and
376 (2) (k) of the IPC. The criminal proceedings were initiated against
the appellant herein pursuant to the FIR lodged on 22.11.2013 by the
Police Inspector, CID, Crime Branch, Dona Paula for the aforesaid
offences alleged to have been committed on 21.11.2013. That the
Investigating Officer collected the relevant material/evidence and also
recorded the statement of the relevant witnesses including the
prosecutrix and thereafter filed the chargesheet against the appellant
for the aforesaid offences. That thereafter, the learned Additional
Sessions Judge, Mapusa vide Order dated 07.09.2017 ordered charge
to be framed against the appellant for the offences under Sections
354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the IPC.
3.1 Feeling aggrieved and dissatisfied with the Order dated
07.09.2017 passed by the learned Additional Sessions Judge, Mapusa
ordering charge to be framed against the appellant herein – original
2
accused for the aforesaid offences, the appellant hereinoriginal
accused approached the High Court by way of Revision Application.
3.2 By the impugned Judgment and Order, the High Court has
dismissed the said Revision Application and has refused to discharge
the accused for the offences for which he has been charged. Hence,
the appellantoriginal accused is before this Court by way of present
appeal.
4. Shri Vikas Singh, learned Senior Advocate has appeared on
behalf of the appellant herein – original accused and Shri Tushar
Mehta, learned Solicitor General of India has appeared on behalf of the
respondents.
5. Shri Vikas Singh, learned Senior Advocate appearing on behalf of
the appellantoriginal accused has vehemently submitted that, in the
facts and circumstances of the case, the High Court has materially
erred in not exercising the revisional jurisdiction and has materially
erred in not discharging the appellant – original accused from the
offences for which he has been charged.
5.1 Shri Vikas Singh, learned Senior Advocate appearing on behalf of
the appellantoriginal accused has further submitted that the High
Court has materially erred in not properly appreciating the scope and
ambit of powers to be exercised under Section 227 and 228 of the
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CrPC.
5.2 It is further submitted by Shri Vikas Singh, learned Senior
Advocate appearing on behalf of the appellantoriginal accused that
the material collected during the course of the investigation and the
evidence so far on record do not make out even a prima facie case
against the appellant for the offences for which he has been charged.
5.3 Shri Vikas Singh, learned Senior Advocate appearing on behalf of
the appellantoriginal accused has further submitted that even from
the CCTV footage no case is made out against the appellant for the
offences for which he has been charged.
5.4 Shri Vikas Singh, learned Senior Advocate appearing on behalf of
the appellantoriginal accused has taken us to some WhatsApp
messages by the prosecutrix and has commented upon the same and
has submitted that the prosecutrix is not reliable at all and the
prosecutrix shall not be believed.
5.5 It is further submitted by Shri Vikas Singh, learned Senior
Advocate appearing on behalf of the appellantoriginal accused that in
the present case, the complainant and the Investigating Officer are the
same and therefore the entire criminal proceedings have been vitiated.
In support of his above submissions, Shri Vikas Singh, learned Senior
Advocate appearing on behalf of the appellantoriginal accused has
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heavily relied upon the decisions of this Court in the case of Bhagwan
Singh v. The State of Rajasthan (1976) 1 SCC 15 as well as the
subsequent decision of this Court in the case of Mohan Lal v. State of
Punjab (2018) 17 SCC 627.
5.6 It is further submitted by Shri Vikas Singh, learned Senior
Advocate that as such the decision of this Court in the case of Mohan
Lal (Supra) is referred to a larger Bench by a two Judge Bench of this
Court vide Order dated 17.01.2019 in the case of Mukesh Singh v.
State (Narcotic Branch of Delhi) SLP (Crl.) D. No.39528 of 2018 and,
therefore, if this Court is not inclined to consider/follow the decision
of this Court in the case of Mohan Lal (Supra), the present appeal may
be kept pending till the decision by a larger Bench in the case of
Mukesh Singh (Supra). It is submitted that, however, in the case of
Mohan Lal (Supra), this Court has specifically observed and held that
if the complainant and the Investigating Officer are the same, the trial
is vitiated. Therefore, by heavily relying upon the decision of this Court
in the case of Mohan Lal (Supra) and the decision of this Court in the
case of Bhagwan Singh (Supra) it is prayed to quash the criminal
proceedings against the appellant and discharge the appellant from
the offences for which he has been charged.
5.7 Learned counsel appearing on behalf of the appellant original
5
accused has also made submissions on merits. However, in view of the
limited scope of jurisdiction to be exercised at the stage of Sections
227/228 of the CrPC which shall be dealt with hereinbelow, we do not
propose to go in detail and consider the submissions on merits at this
stage as even otherwise any observation by this Court at this stage in
the present proceedings may ultimately affect either of the parties in
the trial.
5.8 Making the above submissions and relying upon above decisions,
it is prayed to allow the present appeal and quash and set aside the
impugned Judgment and Order passed by the High Court as well as
the Order passed by the learned Trial Court and discharge the
appellant from the offences under Sections 354, 354A, 354B, 341,
342, 376 (2) (f) and 376 (2) (k) of the IPC.
6. The present appeal is vehemently opposed by Shri Tushar Mehta,
learned Solicitor General of India appearing on behalf of the
respondents.
6.1 Shri Tushar Mehta, learned Solicitor General of India appearing
on behalf of the respondents has vehemently submitted that in the
present case, after thorough investigation and thereafter having found
the prima facie case against the accused, the Investigating Officer has
filed the chargesheet against the accused for the offences under
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Sections 354, 354A, 354B, 341, 342, 376 (2) (f) and 376 (2) (k) of the
IPC. It is submitted that thereafter, after considering the
material/evidence on record, the learned Trial Court has framed the
charge against the accused. It is submitted that thereafter,
considering the limited scope of jurisdiction to be exercised at the
stage of framing the charge under Section 227/228 of the CrPC, the
High Court has rightly refused to discharge the appellantoriginal
accused and has rightly refused to set aside the Order passed by the
learned Trial Court ordering charge to be framed against the
appellantoriginal accused.
6.2 Shri Tushar Mehta, learned Solicitor General of India appearing
on behalf of the respondents has heavily relied upon the following
decisions of this Court in support of his submission that at the stage
of Section 227 and/or Section 228 of the CrPC at the stage of
framing of the charge, the truth, veracity and effect of the evidence
which the Prosecutor proposes to adduce are not to be meticulously
judged. Nor is any weight to be attached to the probable defence of the
accused. It is vehemently submitted by Shri Tushar Mehta, learned
Solicitor General that it is not obligatory for the Judge, at the stage of
framing of the charge, to consider in any detail and weigh in a
sensitive balance whether the facts, if proved, would be incompatible
7
with the innocence of the accused or not. It is vehemently submitted
by Shri Tushar Mehta, learned Solicitor General that at the stage of
framing of the charge the Court is only required to consider whether
there is ground for presuming that the accused has committed the
offence and nothing more than that. It is submitted that even it is held
by this Court that if, at the initial stage, there is a strong suspicion
which leads the Court to think that there is ground for presuming that
the accused has committed an offence then it is not open to the Court
to say that there is no sufficient ground for proceeding against the
accused.
6.3 It is further submitted by Shri Tushar Mehta, learned Solicitor
General that in the present case, there is ample material/evidence on
record against the accused and sufficient grounds are available for
proceeding against the accused.
6.4 It is further submitted by Shri Tushar Mehta, learned Solicitor
General that whatever submissions are made by the learned counsel
appearing on behalf of the appellantoriginal accused are on merits of
the case and/or they can be said to be of defence which may be
available to the accused and they are not required to be considered at
the stage of framing of the charge. And thereafter, it is prayed to
dismiss the present appeal. In support of his above submissions and
8
prayer to dismiss the present appeal, Shri Tushar Mehta, learned
Solicitor General has heavily relied upon the following decisions of this
Court :
(i) Union of India v. Prafulla Kumar Samal , (1979) 3 SCC 4 (Para 10),
(ii) State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 (Para 4),
(iii) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1
SCC 715,
(iv) Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460,
(v) Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330,
(vi) Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya,
(1990) 4 SCC 76,
(vii) State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 (Para 29 to
31.3),
(viii) State v. S. Selvi, (2018) 13 SCC 455,
(ix) Mauvin Godinho v. State of Goa, (2018) 3 SCC 358.
6.5 Now, so far as the submissions made by Shri Vikas Singh,
learned Senior Advocate appearing on behalf of the appellantoriginal
accused that as in the present case the Investigating Officer and the
complainant are the same and therefore the criminal proceedings are
required to be quashed and the reliance placed upon the decisions of
this Court in the case of Bhagwan Singh (Supra) and in the case of
9
Mohan Lal (Supra) are concerned, it is vehemently submitted by Shri
Tushar Mehta, learned Solicitor General that in the case of Mohan Lal
(Supra) this Court was considering its earlier decision in the case of
Bhagwan Singh (Supra), however, subsequently, another three Judge
Bench of this Court in the case of Varinder Kumar v. State of Himachal
Pradesh Criminal Appeal No.245051 of 2010 dated 11.02.2019,
(2019) SCC OnLine SC 170 has specifically observed and held that the
decision of this Court in the case of Mohan Lal (Supra) shall be
applicable prospectively and that all pending criminal prosecutions,
trials and appeals prior to the law laid down in Mohan Lal (Supra)
shall continue to be governed by the individual facts of the case. It is
submitted therefore that in view of the law laid down by this Court in
the case of Va rinder Kumar (Supra), as in the present case, the
criminal prosecution has been initiated prior to the decision of this
Court in the case of (Supra), the criminal proceedings are
Mohan Lal
not required to be quashed and set aside and the appellantoriginal
accused against whom strong grounds are made out for prosecution,
is not required to be discharged.
6.6 Making the above submissions and relying upon the above
decisions, it is prayed to dismiss the present appeal.
7. In rejoinder and on the reliance based upon the subsequent
10
decision of this Court in the case of Varinder Kumar (Supra) relied
upon by Shri Tushar Mehta, learned Solicitor General, Shri Vikas
Singh, learned Senior Advocate has vehemently submitted that in the
case of Varinder Kumar (Supra) it was not open for the subsequent
Bench to observe and hold that the decision in the case of Mohan Lal
(Supra) would be applicable prospectively. It is vehemently submitted
by Shri Vikas Singh, learned Senior Counsel that only in the case of
Mohan Lal (Supra), the Court could have observed and held that the
said decision shall be made applicable prospectively. It is submitted
that in the case of Mohan Lal (Supra) the Bench did not observe that
the said decision shall be applicable prospectively. It is submitted that
therefore it was not open for the subsequent Bench to observe and
hold that the decision in the case of Mohan Lal (Supra) would be
applicable prospectively. It is submitted that therefore the decision of
this Court in the case of Mohan Lal (Supra) shall be applicable with
full force to the facts of the case on hand and as the complainant and
the Investigating Officer are the same, the entire criminal proceedings
have been vitiated and therefore it is prayed to allow the present
appeal and discharge the appellant from the offences for which he has
been charged.
8. We have heard the learned Counsel for the respective parties at
11
length. We have also gone through and considered the Judgment and
Order passed by the High Court as well as the relevant material on
record.
8.1 At the outset it is required to be noted that after conclusion of
the investigation, the Investigating Officer had filed the chargesheet
against the accused for the offences under Sections 354, 354A, 354B,
341, 342, 376 (2) (f) and 376 (2) (k) of the IPC. That thereafter, learned
Trial Court has framed the charge against the appellantoriginal
accused for the aforesaid offences, in exercise of its powers under
Section 227/228 of the CrPC. Framing of the charge against the
accused for the aforesaid offences was the subject matter before the
High Court. By the impugned Judgment and Order the High Court has
dismissed the Revision Application and has confirmed the Order
passed by the learned Trial Court ordering to frame the charge against
the accused for the aforesaid offences. Hence, the appellantoriginal
accused is before this Court by way of present appeal.
8.2 That it is mainly contended on behalf of the appellant that in the
present case as the complainant and Investigating Officer are the
same and therefore in view of the decision of this Court in the case of
Mohan Lal (Supra) the entire criminal proceedings are vitiated and
therefore the appellant – original accused is to be discharged.
12
However, it is required to be noted that apart from the fact that the
decision of this Court in the case of Mohan Lal (Supra) has been
doubted and pursuant to the Order passed by this Court dated
17.01.2019 in SLP (Crl.) D. No.39528 of 2018, the same is referred to
the larger Bench. In the subsequent decision in the case of
Varinder
Kumar (Supra), a three Judge Bench of this Court had an occasion to
consider the decision of this Court in the case of Mohan Lal (Supra)
and the three Judge Bench of this Court has held that the decision of
this Court in the case of (Supra) shall be applicable
Mohan Lal
prospectively, it is further held that all pending criminal prosecutions,
trials and appeals prior to the law laid down in Mohan Lal (Supra)
shall continue to be governed by the individual facts of the case.
Therefore, the reliance placed upon the decision of this Court in the
case of Mohan Lal (Supra) by the learned Counsel appearing on behalf
of the appellantoriginal accused is misplaced. Now, the submission
made by Shri Vikas Singh, learned Senior Advocate appearing on
behalf of the appellantoriginal accused that the subsequent Bench in
the case of Varinder Kumar (Supra) could not have held that the
decision of this Court in the case of Mohan Lal (Supra) shall be
applicable prospectively is concerned, at the outset, it is required to be
noted that this Bench is not considering whether in the subsequent
13
decision in the case of Varinder Kumar (Supra), the Bench could not
have considered the prospective applicability of the decision in the
case of (Supra) or not? The three Judge Bench of this Court
Mohan Lal
held that the decision of this Court in the case of Mohan Lal (Supra)
would be applicable prospectively and the same shall not affect
criminal prosecutions, trials and appeals. We are bound by that
decision. Therefore, we are of the opinion that the decision of this
Court in the case of Mohan Lal (Supra) shall not be applicable to the
facts of the case on hand as criminal prosecution has been initiated in
the present case much prior to the decision in the case of the Mohan
(Supra). Therefore, the appellant cannot be discharged at this
Lal
stage on the aforesaid ground mainly that the Investigating Officer and
the complainant/informant are the same the trial is vitiated, relying
upon the decision of this Court in the case of Mohan Lal (Supra). Even
the decision of this Court in the case of Bhagwan Singh (Supra), relied
upon by the learned Counsel appearing on behalf of the appellant
original accused, also shall not be of much assistance to the appellant
at this stage. In the case of Bhagwan Singh (Supra) and after the trial
this Court held that as the complainant herself was the Investigating
Officer, the case of the prosecution would not be free from doubt. It
was the case after trial and not at the stage of framing of the charge.
14
Where the complainant himself had conducted the investigation, such
aspect of the matter can certainly be given due weightage while
assessing the evidence on record but it would be completely a different
thing to say that the trial itself would be vitiated for such infraction.
Therefore, the aforesaid ground is not required to be considered at this
stage, namely, at the stage of framing of the charge. At the stage of
framing of the charge, the different considerations would weigh, which
are dealt with hereinbelow.
9. Now, so far as the prayer of the appellant to discharge him and
the submissions made by Shri Vikas Singh, learned Senior Advocate
on merits are concerned, the law on the scope at the stage of Section
227/228 CrPC is required to be considered.
9.1 In the case of N. Suresh Rajan (Supra) this Court had an occasion
to consider in detail the scope of the proceedings at the stage of
framing of the charge under Section 227/228 CrPC. After considering
earlier decisions of this Court on the point thereafter in paragraph 29
to 31 this Court has observed and held as under:
| “29. | We have bestowed our consideration to the rival | |
|---|---|---|
| submissions and the submissions made by Mr Ranjit | ||
| Kumar commend us. True it is that at the time of | ||
| consideration of the applications for discharge, the | ||
| court cannot act as a mouthpiece of the prosecution | ||
| or act as a post office and may sift evidence in order to | ||
| find out whether or not the allegations made are | ||
| groundless so as to pass an order of discharge. It is |
15
| trite that at the stage of consideration of an | |||
|---|---|---|---|
| application for discharge, the court has to proceed | |||
| with an assumption that the materials brought on | |||
| record by the prosecution are true and evaluate the | |||
| said materials and documents with a view to find out | |||
| whether the facts emerging therefrom taken at their | |||
| face value disclose the existence of all the ingredients | |||
| constituting the alleged offence. At this stage, | |||
| probative value of the materials has to be gone into | |||
| and the court is not expected to go deep into the | |||
| matter and hold that the materials would not warrant | |||
| a conviction. In our opinion, what needs to be | |||
| considered is whether there is a ground for presuming | |||
| that the offence has been committed and not whether | |||
| a ground for convicting the accused has been made | |||
| out. To put it differently, if the court thinks that the | |||
| accused might have committed the offence on the | |||
| basis of the materials on record on its probative value, | |||
| it can frame the charge; though for conviction, the | |||
| court has to come to the conclusion that the accused | |||
| has committed the offence. The law does not permit a | |||
| mini trial at this stage. | |||
| 30. Reference in this connection can be made to a<br>recent decision of this Court in Sheoraj Singh<br>Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4<br>SCC (Cri) 21 : AIR 2013 SC 52] , in which, after<br>analysing various decisions on the point, this Court<br>endorsed the following view taken in Onkar Nath<br>Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 :<br>(2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat<br>case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR<br>2013 SC 52] , SCC p. 482, para 15) | |||
| “15. ‘11. It is trite that at the stage of framing<br>of charge the court is required to evaluate the<br>material and documents on record with a view<br>to finding out if the facts emerging<br>therefrom, taken at their face value, disclosed<br>the existence of all the ingredients<br>constituting the alleged offence. At that stage,<br>the court is not expected to go deep into the<br>probative value of the material on<br>record. What needs to be considered is |
16
| whether there is a ground for presuming that<br>the offence has been committed and not a<br>ground for convicting the accused has been<br>made out. At that stage, even strong<br>suspicion founded on material which leads<br>the court to form a presumptive opinion as to<br>the existence of the factual ingredients<br>constituting the offence alleged would justify<br>the framing of charge against the accused in<br>respect of the commission of that offence.’<br>(Onkar Nath case [(2008) 2 SCC 561 : (2008) 1<br>SCC (Cri) 507] , SCC p. 565, para 11)” | ||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (emphasis in original) | ||||||||||||||||||||||||
| 31. | Now reverting to the decisions of this Court | |||||||||||||||||||||||
| in | Sajjan Kumar | [ | Sajjan Kumar | v. | CBI | , (2010) 9 SCC | ||||||||||||||||||
| 368 : (2010) 3 SCC (Cri) 1371] and | Dilawar Balu | |||||||||||||||||||||||
| Kurane | [ | Dilawar Balu Kurane | v. | State of Maharashtra | , | |||||||||||||||||||
| (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by | ||||||||||||||||||||||||
| the respondents, we are of the opinion that they do | ||||||||||||||||||||||||
| not advance their case. The aforesaid decisions | ||||||||||||||||||||||||
| consider the provision of Section 227 of the Code and | ||||||||||||||||||||||||
| make it clear that at the stage of discharge the court | ||||||||||||||||||||||||
| cannot make a roving enquiry into the pros and cons | ||||||||||||||||||||||||
| of the matter and weigh the evidence as if it was | ||||||||||||||||||||||||
| conducting a trial. It is worth mentioning that the | ||||||||||||||||||||||||
| Code contemplates discharge of the accused by the | ||||||||||||||||||||||||
| Court of Session under Section 227 in a case triable | ||||||||||||||||||||||||
| by it; cases instituted upon a police report are covered | ||||||||||||||||||||||||
| by Section 239 and cases instituted otherwise than on | ||||||||||||||||||||||||
| a police report are dealt with in Section 245. From a | ||||||||||||||||||||||||
| reading of the aforesaid sections it is evident that they | ||||||||||||||||||||||||
| contain somewhat different provisions with regard to | ||||||||||||||||||||||||
| discharge of an accused: | ||||||||||||||||||||||||
| 31.1. | Under Section 227 of the Code, the trial court is | |||||||||||||||||||||||
| required to discharge the accused if it “considers that | ||||||||||||||||||||||||
| there is not sufficient ground for proceeding against | ||||||||||||||||||||||||
| the accused”. However, discharge under Section 239 | ||||||||||||||||||||||||
| can be ordered when “the Magistrate considers the | ||||||||||||||||||||||||
| charge against the accused to be groundless”. The | ||||||||||||||||||||||||
| power to discharge is exercisable under Section 245(1) | ||||||||||||||||||||||||
| when, “the Magistrate considers, for reasons to be | ||||||||||||||||||||||||
| recorded that no case against the accused has been |
17
| made out which, if unrebutted, would warrant his | ||||||
|---|---|---|---|---|---|---|
| conviction”. | ||||||
| 31.2. | Section 227 and 239 provide for discharge | |||||
| before the recording of evidence on the basis of the | ||||||
| police report, the documents sent along with it and | ||||||
| examination of the accused after giving an opportunity | ||||||
| to the parties to be heard. However, the stage of | ||||||
| discharge under Section 245, on the other hand, is | ||||||
| reached only after the evidence referred in Section 244 | ||||||
| has been taken. | ||||||
| 31.3. Thus, there is difference in the language<br>employed in these provisions. But, in our opinion,<br>notwithstanding these differences, and whichever<br>provision may be applicable, the court is required at<br>this stage to see that there is a prima facie case for<br>proceeding against the accused. Reference in this<br>connection can be made to a judgment of this Court<br>in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 :<br>1986 SCC (Cri) 256] . The same reads as follows: (SCC<br>pp. 75556, para 43) | ||||||
| “43. … Notwithstanding this difference in the<br>position there is no scope for doubt that the<br>stage at which the Magistrate is required to<br>consider the question of framing of charge<br>under Section 245(1) is a preliminary one and<br>the test of ‘prima facie’ case has to be applied.<br>In spite of the difference in the language of<br>the three sections, the legal position is that if<br>the trial court is satisfied that a prima facie<br>case is made out, charge has to be framed.” |
9.2 In the subsequent decision in the case of S. Selvi (Supra) this
Court has summarised the principles while framing of the charge at
the stage of Section 227/228 of the CrPC. This Court has observed
and held in paragraph 6 and 7 as under:
| “6. | It is well settled by this Court in a catena of | |||||||
|---|---|---|---|---|---|---|---|---|
| judgments including | Union of India | v. | Prafulla Kumar |
18
| Samal [ | Union of India | v. | Prafulla Kumar Samal | , (1979) | ||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 3 SCC 4 : 1979 SCC (Cri) 609] , | Dilawar Balu | |||||||||||||||||||||||||||||||
| Kurane | v. | State of Maharashtra | [ | Dilawar Balu | ||||||||||||||||||||||||||||
| Kurane | v. | State of Maharashtra | , (2002) 2 SCC 135 : | |||||||||||||||||||||||||||||
| 2002 SCC (Cri) 310] , | Sajjan Kumar | v. | CBI | [ | Sajjan | |||||||||||||||||||||||||||
| Kumar | v. | CBI | , (2010) 9 SCC 368 : (2010) 3 SCC (Cri) | |||||||||||||||||||||||||||||
| 1371] | , | State | v. | A. Arun Kumar | [ | Stat | e | v. | A. Arun | |||||||||||||||||||||||
| Kumar, | (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : | |||||||||||||||||||||||||||||||
| (2015) 1 SCC (L&S) 505] , | Sonu Gupta | v. | Deepak | |||||||||||||||||||||||||||||
| Gupta [ | Sonu Gupta | v. | Deepak Gupta | , (2015) 3 SCC | ||||||||||||||||||||||||||||
| 424 : (2015) 2 SCC (Cri) 265] , | State of | |||||||||||||||||||||||||||||||
| Orissa | v. | Debendra Nath Padhi | [State of | |||||||||||||||||||||||||||||
| Orissa | v. | Debendra Nath Padhi | , (2003) 2 SCC 711 : | |||||||||||||||||||||||||||||
| 2003 SCC (Cri) 688] , | Niranjan Singh Karam Singh | |||||||||||||||||||||||||||||||
| Punjabi | v. | Jitendra Bhimraj Bijjaya | [ | Niranjan Singh | ||||||||||||||||||||||||||||
| Karam Singh Punjabi | v. | Jitendra Bhimraj Bijjaya | , | |||||||||||||||||||||||||||||
| (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and | Supt. & | |||||||||||||||||||||||||||||||
| Remembrancer of Legal Affairs | v. | Anil Kumar | ||||||||||||||||||||||||||||||
| Bhunja | [Supt. & Remembrancer of Legal Affairs | v. | Anil | |||||||||||||||||||||||||||||
| Kumar Bhunja | , (1979) 4 SCC 274 : 1979 SCC (Cri) | |||||||||||||||||||||||||||||||
| 1038] that the Judge while considering the question of | ||||||||||||||||||||||||||||||||
| framing charge under Section 227 of the Code in | ||||||||||||||||||||||||||||||||
| sessions cases (which is akin to Section 239 CrPC | ||||||||||||||||||||||||||||||||
| pertaining to warrant cases) has the undoubted power | ||||||||||||||||||||||||||||||||
| to sift and weigh the evidence for the limited purpose | ||||||||||||||||||||||||||||||||
| of finding out whether or not a prima facie case | ||||||||||||||||||||||||||||||||
| against the accused has been made out; where the | ||||||||||||||||||||||||||||||||
| material placed before the court discloses grave | ||||||||||||||||||||||||||||||||
| suspicion against the accused which has not been | ||||||||||||||||||||||||||||||||
| properly explained, the court will be fully justified in | ||||||||||||||||||||||||||||||||
| framing the charge; by and large if two views are | ||||||||||||||||||||||||||||||||
| equally possible and the Judge is satisfied that the | ||||||||||||||||||||||||||||||||
| evidence produced before him while giving rise to | ||||||||||||||||||||||||||||||||
| some suspicion but not grave suspicion against the | ||||||||||||||||||||||||||||||||
| accused, he will be fully within his rights to discharge | ||||||||||||||||||||||||||||||||
| the accused. The Judge cannot act merely as a post | ||||||||||||||||||||||||||||||||
| office or a mouthpiece of the prosecution, but has to | ||||||||||||||||||||||||||||||||
| consider the broad probabilities of the case, the total | ||||||||||||||||||||||||||||||||
| effect of the statements and the documents produced | ||||||||||||||||||||||||||||||||
| before the court, any basic infirmities appearing in the | ||||||||||||||||||||||||||||||||
| case and so on. This however does not mean that the | ||||||||||||||||||||||||||||||||
| Judge should make a roving enquiry into the pros and |
19
| cons of the matter and weigh the materials as if he | |||
|---|---|---|---|
| was conducting a trial. | |||
| 7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010)<br>9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on<br>consideration of the various decisions about the scope<br>of Sections 227 and 228 of the Code, laid down the<br>following principles: (SCC pp. 37677, para 21) | |||
| “(i) The Judge while considering the question<br>of framing the charges under Section 227<br>CrPC has the undoubted power to sift and<br>weigh the evidence for the limited purpose of<br>finding out whether or not a prima facie case<br>against the accused has been made out. The<br>test to determine prima facie case would<br>depend upon the facts of each case. | |||
| (ii) Where the materials placed before the<br>court disclose grave suspicion against the<br>accused which has not been properly<br>explained, the court will be fully justified in<br>framing a charge and proceeding with the<br>trial. | |||
| (iii) The court cannot act merely as a post<br>office or a mouthpiece of the prosecution but<br>has to consider the broad probabilities of the<br>case, the total effect of the evidence and the<br>documents produced before the court, any<br>basic infirmities, etc. However, at this stage,<br>there cannot be a roving enquiry into the pros<br>and cons of the matter and weigh the<br>evidence as if he was conducting a trial. | |||
| (iv) If on the basis of the material on record,<br>the court could form an opinion that the<br>accused might have committed offence, it can<br>frame the charge, though for conviction the<br>conclusion is required to be proved beyond<br>reasonable doubt that the accused has<br>committed the offence. | |||
| (v) At the time of framing of the charges, the<br>probative value of the material on record<br>cannot be gone into but before framing a<br>charge the court must apply its judicial mind |
20
on the material placed on record and must be
satisfied that the commission of offence by the
accused was possible.
( ) At the stage of Sections 227 and 228, the
vi
court is required to evaluate the material and
documents on record with a view to find out if
the facts emerging therefrom taken at their
face value disclose the existence of all the
ingredients constituting the alleged offence.
For this limited purpose, sift the evidence as
it cannot be expected even at that initial stage
to accept all that the prosecution states as
gospel truth even if it is opposed to common
sense or the broad probabilities of the case.
( ) If two views are possible and one of them
vii
gives rise to suspicion only, as distinguished
from grave suspicion, the trial Judge will be
empowered to discharge the accused and at
this stage, he is not to see whether the trial
will end in conviction or acquittal.””
9.3 In the case of Mauvin Godinho (Supra) this Court had an occasion
to consider how to determine prima facie case while framing the
charge under Section 227/228 of the CrPC. In the same decision this
Court observed and held that while considering the prima facie case at
the stage of framing of the charge under Section 227 of the CrPC there
cannot be a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
9.4 At this stage the decision of this Court in the case of Stree
Atyachar Virodhi Parishad (Supra) is also required to be referred to. In
that aforesaid decision this Court had an occasion to consider the
scope of enquiry at the stage of deciding the matter under Section
21
227/228 of the CrPC. In paragraphs 11 to 14 observations of this
Court in the aforesaid decision are as under :
| “11. Section 227 of the Code of Criminal Procedure<br>having bearing on the contentions urged for the<br>parties, provides: | ||
|---|---|---|
| “227. Discharge.—If, upon consideration of<br>the record of the case and the documents<br>submitted therewith, and after hearing the<br>submissions of the accused and the<br>prosecution in this behalf, the Judge<br>considers that there is no sufficient ground<br>for proceeding against the accused, he shall<br>discharge the accused and record his reasons<br>for so doing.” | ||
| 12. Section 228 requires the Judge to frame charge if<br>he considers that there is ground for presuming that<br>the accused has committed the offence. The<br>interaction of these two sections has already been the<br>subjectmatter of consideration by this Court. In State<br>of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC<br>(Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while<br>explaining the scope of the said sections observed:<br>[SCR p. 259 : SCC pp. 4142 : SCC (Cri) pp. 53536,<br>para 4] | ||
| Reading the two provisions together in<br>juxtaposition, as they have got to be, it would<br>be clear that at the beginning and the initial<br>stage of the trial the truth, veracity and effect<br>of the evidence which the Prosecutor proposes<br>to adduce are not to be meticulously Judged.<br>Nor is any weight to be attached to the<br>probable defence of the accused. It is not<br>obligatory for the Judge at that stage of the<br>trial to consider in any detail and weigh in a<br>sensitive balance whether the facts, if proved,<br>would be incompatible with the innocence of<br>the accused or not. The standard of test and<br>judgment which is to be finally applied before<br>recording a finding regarding the guilt or<br>otherwise of the accused is not exactly to be |
22
| applied at the stage of deciding the matter<br>under Section 227 or Section 228 of the Code.<br>At that stage the court is not to see whether<br>there is sufficient ground for conviction of the<br>accused or whether the trial is sure to end in<br>his conviction. Strong suspicion against the<br>accused, if the matter remains in the region of<br>suspicion, cannot take the place of proof of<br>his guilt at the conclusion of the trial. But at<br>the initial stage if there is a strong suspicion<br>which leads the court to think that there is<br>ground for presuming that the accused has<br>committed an offence then it is not open to<br>the court to say that there is no sufficient<br>ground for proceeding against the accused. | ||
|---|---|---|
| 13. In Union of India v. Prafulla Kumar Samal [(1979) 3<br>SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] ,<br>Fazal Ali, J., summarised some of the principles: [SCR<br>pp. 23435 : SCC p. 9 : SCC (Cri) pp. 61314, para 10] | ||
| “(1) That the Judge while considering the<br>question of framing the charges under Section<br>227 of the Code has the undoubted power to<br>sift and weigh the evidence for the limited<br>purpose of finding out whether or not a prima<br>facie case against the accused had been made<br>out. | ||
| (2) Where the materials placed before the<br>court disclose grave suspicion against the<br>accused which has not been properly<br>explained the court will be fully justified in<br>framing a charge and proceeding with the<br>trial. | ||
| (3) The test to determine a prima facie case<br>would naturally depend upon the facts of<br>each case and it is difficult to lay down a rule<br>of universal application. By and large however<br>if two views are equally possible and the<br>Judge is satisfied that the evidence produced<br>before him while giving rise to some suspicion<br>but not grave suspicion against the accused,<br>he will be fully within his right to discharge<br>the accused. |
23
| (4) That in exercising his jurisdiction under<br>Section 227 of the Code the Judge which<br>under the present Code is a senior and<br>experienced court cannot act merely as a post<br>office or a mouthpiece of the prosecution, but<br>has to consider the broad probabilities of the<br>case, the total effect of the evidence and the<br>documents produced before the court, any<br>basic infirmities appearing in the case and so<br>on. This however does not mean that the<br>Judge should make a roving enquiry into the<br>pros and cons of the matter and weigh the<br>evidence as if he was conducting a trial.” | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 14. | These two decisions do not lay down different | |||||||||||
| principles. | Prafulla Kumar case | [(1979) 3 SCC 4 : 1979 | ||||||||||
| SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated | ||||||||||||
| what has been stated in | Ramesh Singh case | [(1977) 4 | ||||||||||
| SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In | ||||||||||||
| fact, Section 227 itself contains enough guidelines as | ||||||||||||
| to the scope of enquiry for the purpose of discharging | ||||||||||||
| an accused. It provides that “the Judge shall | ||||||||||||
| discharge when he considers that there is no | ||||||||||||
| sufficient ground for proceeding against the accused”. | ||||||||||||
| The “ground” in the context is not a ground for | ||||||||||||
| conviction, but a ground for putting the accused on | ||||||||||||
| trial. It is in the trial, the guilt or the innocence of the | ||||||||||||
| accused will be determined and not at the time of | ||||||||||||
| framing of charge. The court, therefore, need not | ||||||||||||
| undertake an elaborate enquiry in sifting and | ||||||||||||
| weighing the material. Nor is it necessary to delve | ||||||||||||
| deep into various aspects. All that the court has to | ||||||||||||
| consider is whether the evidentiary material on record | ||||||||||||
| if generally accepted, would reasonably connect the | ||||||||||||
| accused with the crime. No more need be enquired | ||||||||||||
| into.” |
9.5 Applying the law laid down by this Court in the aforesaid
decisions and considering the scope of enquiry at the stage of framing
of the charge under Section 227/228 if the CrPC, we are of the opinion
24
that the submissions made by the learned Counsel appearing on
behalf of the appellant on merits, at this stage, are not required to be
considered. Whatever submissions are made by the learned Counsel
appearing on behalf of the appellant are on merits are required to be
dealt with and considered at an appropriate stage during the course of
the trial. Some of the submissions may be considered to be the
defence of the accused. Some of the submissions made by the learned
Counsel appearing on behalf of the appellant on the conduct of the
victim/prosecutrix are required to be dealt with and considered at an
appropriate stage during the trial. The same are not required to be
considered at this stage of framing of the charge. On considering the
material on record, we are of the opinion that there is more than a
prima facie case against the accused for which he is required to be
tried. There is sufficient ample material against the accused and
therefore the learned Trial Court has rightly framed the charge against
the accused and the same is rightly confirmed by the High Court. No
interference of this Court is called for.
10. In view of the above and for the reasons stated above, the present
appeal fails and as a result the appeal stands dismissed. Considering
the fact that the allegations against the appellant of sexual abuse are
25
very serious and affecting the dignity of a woman and is the most
morally and physically reprehensible crime in a society, an assault on
the mind and privacy of the victim and the trial for such offences are
required to be decided and disposed of at the earliest and considering
the fact that in the present case the learned Trial Court has framed
the charge against the accused and the incident is of 2013 and there
is already a delay in concluding the trial because of the pending
proceedings, we direct the learned Trial Court to conclude the trial at
the earliest within a period of six months from the date of receipt of
the Order of this Court. All concerned are directed to cooperate with
the Trial Court in the earlier disposal of the trial and within the
stipulated time observed hereinabove.
With these observations present appeal stands dismissed.
Pending application(s), if any, stand(s) disposed of.
MA No.2207 of 2018 in SLP (Crl.) No.31493150 of 2014
The present MA has been filed in a disposed of matter in SLP
(Crl.) No.31493150 of 2014 with the prayer to direct the Trial Court to
release the passport of the applicant so as to enable him to travel to
26
London anytime between 21.08.2018 to 01.09.2018. Since that period
is already over, the present MA has become infructuous and is
disposed of as such.
..................................J.
(ARUN MISHRA)
...................................J.
(M. R. SHAH)
New Delhi ...................................J.
August 19, 2019 (B. R. GAVAI)
27